United States: What Businesses Need to Know When Defending Against ADA Lawsuits What Businesses Need To Know When Defending Against ADA Lawsuits

Last Updated: July 7 2017
Article by James S. O'Brien, Jr.

In his recent article for Retail Minded, Partner James O'Brien, co-chair of Pryor Cashman's Americans With Disabilities Act (ADA) Defense + Consulting practice, examines the rise of "drive-by litigation" and discusses what businesses can do when confronted with serial ADA plaintiffs.

The Advent of Drive-By Litigation

"There can be no doubt that the ADA was established to address a critical need - to make public accommodations accessible to disabled people," O'Brien wrote. "The Act's drafters, however, were shortsighted in omitting a notice provision requiring a would-be plaintiff to first make a demand to cure violations, and providing a reasonable cure period before allowing a plaintiff to commence an [ADA] action."

Instead, businesses are often faced with a scenario in which a disabled plaintiff whom they have never met, and from whom they have never heard, serves them with a complaint citing dozens of alleged ADA violations, and seeking various forms of relief, along with money damages, attorneys' fees and costs.

The absence of any notice requirement has, O'Brien explained, "spawned a cottage industry of attorneys and plaintiffs who make a living suing establishments on ADA grounds...in the pursuit of what may be perceived as 'easy money.'"

In one such case, a double amputee confined to a wheelchair filed 87 federal claims over the course of a year against various businesses, including a spa which featured a pedicure station, even though he had no feet, and a non-kosher restaurant, even though he was an observant Hasidic Jew. The lawsuits all alleged he had suffered an injury by being denied access and were all brought through the same law firm.

ADA Cases Are Different From Other Civil Litigation

It is critical that businesses understand that because the ADA provides for legal fees, the objective in any ADA case should be to minimize a plaintiff's fees. And the real engine driving fees is discovery.

In a typical litigation, there will be some document discovery, followed by depositions. While depositions provide the basis for settlement or summary judgment in most civil actions, "they should be avoided as much as possible in an ADA case," O'Brien explained. "Although plaintiffs' lawyers will serve lengthy document demands if given the chance, discovery is generally pointless because whether an item complies with the ADA's specifications is a matter of measureable, objective fact," he wrote; that a restaurant counter, for instance, measures 34" when it is supposed to be 36". "Also to be avoided," O'Brien advised, "is motion practice which, obviously, is ordinarily a useful tool in most litigation."

O'Brien explained that there are some affirmative defenses businesses can invoke to defend against ADA suits. For example, all "new construction" (including modifications) completed after July 1992 - the effective date of the ADA - must be fully ADA compliant. However, unless the business is certain that no modifications were done after 1992, asserting this defense will undoubtedly lead to discovery into every change undertaken, including cosmetic modifications, followed by depositions.

Further, the ADA does not require modifications that are not "economically feasible," a term that is not defined by the Act. Although a successful defense on this ground will protect a business, it also allows a plaintiff to demand extensive discovery into the business's finances, ultimately leading to increased fees.

Barriers to Access - Engaging an Expert

A typical ADA complaint contains a list of purported "barriers to access." To determine what ADA violations actually exist, "it is usually necessary to conduct an expert inspection – an expense the defendant will have to pay in the settlement, but which has the advantage of defining the precise conditions that exist, so that additional issues are not raised later," O'Brien wrote. Depending on the breadth of ADA violations and the technical aspects of the claims, defendants will often hire their own experts to conduct independent measurements.

O'Brien recommends that once an inspection report has been tendered, counsel for the business attempt to engage in settlement negotiations. "Judges are becoming increasingly aware of the unnecessary costs imposed upon businesses by ADA litigation, and recognize that the ADA's objective of the removal of barriers to access can be met without extensive litigation," he said.

Website Design and ADA Compliance

A relatively new frontier of ADA litigation involves digital content published on websites for blind, deaf and visually-impaired individuals. The World Wide Web Consortium, the web's international standards organization, released version 2.0 of the Web Content Accessibility Guidelines ("WCAG 2.0"), which include standards for accessibility by blind and deaf persons using specialized software.

While the ADA does not contain specifications for website design, the U.S. Department of Justice (DOJ) has long considered websites to fall within the Act's purview. In fact, the DOJ has intervened in several cases asserted against retailers and public universities involving "inaccessible" websites, and has also issued an Advanced Notice of Proposed Rulemaking in order to establish specific standards for making goods, services and facilities offered by public accommodations via the Internet.

Notwithstanding the DOJ's efforts, recent case law demonstrates the lack of clarity regarding what standards e-commerce websites must meet to comply with the ADA. In Robles v. Domino's Pizza LLC, a March 2017 case, a California federal court granted Domino's motion to dismiss without prejudice a class action complaint alleging its website was not accessible to the blind and visually-impaired and therefore in violation of the ADA and California's Civil Rights Act. The Court noted that the DOJ had not yet promulgated rules establishing the accessibility standards that e-commerce webpages must meet under the ADA, which violated Dominos' due process rights.

In the aftermath of Robles, O'Brien suggests, "if you are the recipient of a letter [threatening suit under WCAG 2.0], you now have at least some basis for a motion to dismiss based on Robels. No doubt there will be additional litigation which, hopefully, will clarify which standards, if any, e-commerce websites must meet."

To read the full Retail Minded article, please visit here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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